IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
MARTIN M. C., )
Petitioner )
v. ) Civil Action No. 2:09-MC-00xxx
UNITED STATES OF AMERICA, et al. )
Respondent. )
Plaintiff, Martin M. C. hereby files his Opposition to Motion to Dismiss Pursuant to Rule 12(b)(1), (5) and (6), or Alternatively, for Summary Denial and alleges the following:
JURISDICTION
1. Plaintiff disagrees that jurisdiction over Rock Springs National Bank is improper in the Utah Federal District. It is true that Rock Springs National Bank is only found in Rock Springs, Wyoming and is a local bank. However, the closest United States District Court in proximity to the Plaintiff and this particular defendant is the one located in Salt Lake City, Utah. The nearest United States District Court in the District serving the state of Wyoming where the Plaintiff and Rock Springs National Bank are located is in Cheyenne, Wyoming.
The Courthouse in Cheyenne, Wyoming is a prohibitive 229 miles from Defendant Rock Springs National Bank and to force representatives from this bank to travel a distance of over four hours’ drive would be unreasonable and prohibitive to the Defendant and detrimental to the interest of justice. The United States District Court for the District of Utah, while not in the Plaintiff’s nor Defendant Rock Springs National Bank’s jurisdiction, is much closer in Salt Lake City, Utah, a mere 181 miles from Rock Springs, Wyoming and a more manageable drive of less than three hours.
2. While defendant Green Tree Servicing, LLC does not have offices, representatives, or payment centers in the United States Utah District, this business does do business within the district. Because of the fact that much business is conducted within the district, Plaintiff asserts that Green Tree Servicing, LLC, does fall under the jurisdiction of this Court. Even if the Plaintiff had filed the Petition to Quash Summons in the Cheyenne, Wyoming Court, District Counsel would have once again argued a subject matter jurisdictional issue regarding this defendant anyway. So, the Plaintiff argues the jurisdictional ramifications regardless of which court this matter will be held, whether in the Wyoming District or the Utah District.
According to International Shoe v. Washington, 326 U.S. 310, a business’ “presence” is established where:
a. There is “continuous and systematic” activities within the jurisdiction and
b. Those “continuous and systematic” activities give rise to liabilities sued on even to no consent to be sued or authorization to an agent to accept service of process has been given. International Shoe @ 317. In the case of International Shoe, the Court said that the business, International Shoe, “received the benefits and protection of the laws of the state, including the right to resort to the courts for the enforcement of its rights.” Id. @20.
c. The business enjoys the benefits and protection of the laws of that state. International Shoe @319.
Plaintiff asserts that Defendant Green Tree Servicing meets all three of the items listed in International Shoe. Green Tree Servicing, LLC services mobile home mortgages. Although their offices are located in Saint Paul, Minnesota, they are “found” and engage in “continuous and systematic” activities within the state of Wyoming through the mobile home companies they contract with to service mortgages from the sale of those mobile homes. Plaintiff purchased a mobile home in Rock Springs, Wyoming and was not given a choice of mortgage providers when he applied for financing. He was told that the Defendant Green Tree Servicing, LLC would be the company to finance his loan. Because the Plaintiff was not given a choice of finance companies, it is reasonable to assume that all loans coming out of the mobile home company from which Plaintiff purchased his home are financed through Green Tree Serving, LLC.
By this reasoning, it is Plaintiff’s assertion that Green Tree Servicing, LLC has established a number of contacts in Wyoming and perhaps in the neighboring state of Utah, through the sale of mobile homes in those two states. This subjects the Defendant to not only “the benefits and protection” of the laws of that state but also “give rise to obligation; and, so far as those obligations arise out of or are connected with the activities within the state, [that] a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undone.” International Shoe @319.
If a dispute were to arise out of the Plaintiff’s failure to honor his obligation to pay Defendant Green Tree Servicing, LLC, the Defendant would most likely file suit in the district where the Plaintiff was located, giving the local district jurisdiction by the action brought by Green Tree Servicing, LLC. Likewise, if a dispute were to arise out of the contractual obligations between a mobile home sales company and Green Tree Servicing, LLC, it is likely that the Defendant would file suit, once again, where the mobile home sales company is located, thereby subjecting itself to the jurisdiction of the court in Wyoming or Utah. The reason why the local court would have jurisdiction over these matters, versus the option of carrying on a case in the Defendant’ domicile state, Minnesota, is that the court there would not have subject matter jurisdiction over either the Plaintiff in this case or any of the mobile home sales companies through which Defendant sells mortgages. The Plaintiff in this case and the mobile home sales company would have to be “found” in the Minnesota jurisdiction, which the Defendant would not be able to substantiate.
Through the process of deductive reasoning, it is apparent that in order for the Defendant and Plaintiff to have entered into a business relationship, one of them would have had to enter into the jurisdiction of the other. In this case, the Plaintiff was obligated, through a company he chose to do business with, the mobile home sales company, to enter into a contractual relationship with the Defendant, who had already established a “presence” in his jurisdiction, through “continuous and systematic” activities in the sale of mobile home mortgages. It is unreasonable to assume that, given the interstate commerce taking place by Green Tree Servicing, LLC, there is no “presence” or “continuous and systematic” activities taking place with mobile home sales companies in Salt Lake City, Utah, or other neighboring cities within the United States District in Utah.
Therefore, Plaintiff asserts that this Court, the United States District of Utah, has jurisdiction over the Defendant, Green Tree Servicing, LLC, because of the nature of its business and how it contracted with the Plaintiff in this case. Likewise, if the Plaintiff is compelled to resume this complaint in his district in Cheyenne, Wyoming, the arguments above would be remain the same and valid.
3. Access to Court: In the interest of Justice and in order to allow Plaintiff the opportunity to file a claim, Courts have ruled that there need be no state action that frustrates a litigant’s access to the court. The Plaintiff is an individual with limited resources, a family and employment within the Rock Springs, Wyoming area, in addition to a limited understanding of the Court system. He filed his Petition to Quash Summons using the only resources that were immediately available to him and he did not understand that going to the Court closest to him would be prohibited due to jurisdictional challenges.
The Plaintiff rightly assumed that a Court of the same level of influence and power, otherwise capable of handling his claim, would be the proper one to file his Petition. It is contrary to his understanding of First Amendment rights and his right to access the Court to assume he had to conduct his business over four hours from where he lives, rather than the nearest courthouse, just under three hours from his location. To compel him to withdraw his Petition from the Utah District Court and resume his litigation in the Cheyenne courthouse would be equal to denying him access to the Courts as such a demand would not only be unreasonable, but would frustrate his ability to manage his life and resources while defending his rights so far from home. It would be perfectly understandable if he had incorrectly filed in a court without general jurisdiction, such as the county courthouse. But the Plaintiff properly understood a United States District Court would handle his case and that is the Court he filed in. Why must he and one of the defendants be unreasonably burdened to travel so far a distance to have the same hearing in Cheyenne as would be conducted in Salt Lake City?
The Plaintiff filed his case in good faith and had no interest in manipulating or subverting the justice system in his choice of venue. He simply chose the proper court closest to him. The Court has the authority to take the case in the interest of preserving the Plaintiff’s right to access the court in a jurisdiction that is reasonably more convenient and less burdensome for the Plaintiff.
4. The Defendants, The United States of America, and Green Tree Servicing, LLC, will not be inconvenienced in any way by the matter being heard in the Utah District Court. The United States has many offices and attorneys which can handle the case and manage the files from any location and will not be prejudiced in any way by the case being handled in Utah.
Likewise, Defendant Green Tree Servicing, LLC will have to travel to court from Saint Paul, MN, and, with plenty of notice, can adjust travel plans to go to either jurisdiction without undue hardship or prejudice. Both of these defendants have many resources at their disposal and would suffer no ill effects from this Court determining it in the best interest of justice to keep the current action in the Utah Court.
However, both the Plaintiff, and presumably the defendant Rock Springs National Bank, which is a small local bank, will likely suffer the greatest inconvenience and burden from being compelled to defend their interests in Cheyenne, Wyoming.
WAIVER OF IMMUNITY
Respondent also argues that Section 7609 is a waiver of the United States’ sovereign immunity. “A proceeding to quash is, in effect, a civil suit against the United States, as sovereign, is immune from suit without its consent.” (See Respondent’s Motion to Dismiss; and Memorandum of Law in Support of the Respondent’s Motion to Dismiss, p.4, citing Clay, 199 F.3d at 879). However, Section 7609 would not exist, but to protect the rights of taxpayers, not the rights of the United States government. If a motion to quash invalidated sovereign immunity, then the right to quash would not exist, as it would subvert the purpose of the right to summon that the Respondent is seeking.
The United States government has many resources at its disposal to proceed with any litigation it deems necessary for the interests of the People. However, individuals such as the Plaintiff do not have such freedoms to draw on seemingly unlimited resources to advance his own interests. To allow the government immunity against a plaintiff who is seeking protection of his own constitutionally and statutorily given rights is a mockery of a justice system put into place to protect individual citizens. To harm or frustrate the canons of justice for individuals, one by one, is, in effect, harming and frustrating the People as a whole, which demeans the United States’ primary interest. The United States, its government, representatives, and laws were created for the benefit and freedom of the people. To allow them to claim immunity against an individual has pitted the interests of the people against the interests of one individual without the benefit of due process.
The Plaintiff, a taxpayer, is currently under civil and criminal investigation in regards to his filing and payment of taxes. So far, the Plaintiff enjoys proper freedom, as no Court of any jurisdiction has determined him to be a danger to the interests of the United States or its people. Therefore, the Plaintiff is entitled to due process of law, which includes the right to file in a court of proper jurisdiction (A United States District Court), be allowed access to the Court (one in close proximity to him), and be allowed to advance his case without the Court determining the United States free to invade his personal and private life without due process or just cause.
Wherefore, the Plaintiff asks this Court to consider the arguments presented above and summarily deny the Government’s Motion to Dismiss Petition to Quash Third-Party Summons for lack of subject matter jurisdiction.
CERTIFICATE OF SERVICE: I certify that a copy of this foregoing OPPOSITION TO MOTION TO DISMISS AND MEMORANDUM OF LAW IN SUPPORT OF OPPOSITION was served on Respondent by US Mail in a postage paid wrapper this 30th day of November, 2009, at Respondents’ addresses of record at
U.S. Department of Justice
Post Office Box 227
Ben Franklin Station
Washington, DC 20044
Rock Springs National Bank
Attn: Theresa Loisate
P.O. Box 880
Rock Springs, WY 82902
And
Green Tree Servicing, LLC
345 St. Peter Street
St. Paul, MN 55102
______________________________________ November 30, 2009 Martin C., Petitioner, pro se Rock Springs, WY 82901